Citation Nr: 0948371
Decision Date: 12/23/09 Archive Date: 01/05/10
DOCKET NO. 05-03 697 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for residuals of a head
injury.
REPRESENTATION
Veteran represented by: South Carolina Office of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
K. M. Schaefer, Associate Counsel
INTRODUCTION
The Veteran had active service from September 1960 to
September 1963.
This matter arises before the Board of Veterans' Appeals
(Board) on appeal from a June 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia. The record shows that the Veteran moved to
South Carolina during the course of this appeal and,
consequently, his claims folder was permanently transferred
to the RO in Columbia, South Carolina in April 2007. In
November 2007, the Board remanded the case to the agency of
original jurisdiction (AOJ) for additional development, and
it now returns to the Board for appellate review.
In August 2007, the Veteran testified at a hearing before the
undersigned, sitting at the RO. A transcript of the hearing
is associated with the claims file.
The appeal is again REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the Veteran if further action is required.
REMAND
Although cognizant of the additional delay that will result,
the Board finds that another remand is warranted in this
case. Specifically, evidence received since the last remand
indicates that further development of the record is
necessary.
The Veteran contends that he suffers digestive and nervous
disorders that are a result of a head injury he sustained in
service. He has described being hit in the head and knocked
out when a Howitzer door by which he was standing was opened.
He indicates that he developed digestive problems and
dizziness. He testified that his military occupational
specialty (MOS) was changed from cannoneer to clerk due to
these problems.
Since the prior remand, the Veteran's service personnel
records have been obtained. Those records do indeed show
that the Veteran served as a cannoneer but was later
reassigned to clerical duties. No reason was provided for
the change in MOS. Service treatment records are also
negative for findings pertaining to a head injury. However,
in a statement dated in November 2008, CB, a fellow service
member, indicates that he served with the Veteran in Germany,
and that he was aware of the accident in which the Veteran
was hit on the head by the metal door of a Howitzer during a
training exercise. It is unclear as to the extent of CB's
knowledge of the event, i.e., whether he witnessed event.
Nevertheless, coupled with the change to his MOS, the Board
finds the statement from CB to be sufficient evidence that
the Veteran incurred some type of head trauma in service.
The extent of that trauma remains unknown, however.
Further, in a statement dated in June 2009. Dr. CC states
that he had been the Veteran's treating physician from
September 2004 to January 2005. He expressed the opinion
that the Veteran's current disorders (presumably his
digestive and neurological disorders) "could have been
caused" by the in-service head injury. Dr. CC added that he
based his opinion on the lay statement of CB, the Veteran's
medical history, and his current clinical treatment. The
speculative nature of this opinion renders it of limited
probative value. See Stegman v. Derwinski, 3 Vet. App. 228
(1992), (held that evidence favorable to the veteran's claim
that did little more than suggest a possibility that his
illnesses might have been caused by service radiation
exposure was insufficient to establish service connection).
VA has a duty to provide a VA examination when the record
lacks evidence to decide the Veteran's claim and there is
evidence of (1) a current disability, (2) an in-service
event, injury, or disease, and (3) some indication that the
claimed disability may be associated with the established
event, injury, or disease. 38 C.F.R. § 3.159; see also
McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there
is competent and credible evidence an in-service head injury,
post-service treatment records show that the Veteran has a
current disorder of the neck with neurological symptoms
extending to the arms and gastroesophageal reflux disease,
and a speculative opinion from Dr. CC linking the Veteran's
current problems to his in-service injury. The Board
therefore finds that a remand is warranted so that a VA
examination may be scheduled to ascertain the existence and
etiology of any residuals of head injury the Veteran may
experience.
Finally, the Board notes that the most recent VA treatment
record in the claims file is dated in April 2007, almost
three years ago. As the record shows that the Veteran has
sought VA treatment throughout the appeal period, the Board
determines that a request should be made for VA treatment
records from the Columbia VA medical facility dated from
April 2007 onward.
Accordingly, the case is REMANDED for the following action:
1. Request outstanding VA treatment
records from the Columbia VA medical
facility dated from April 2007 onward.
All requests and responses, positive
and negative, should be associated with
the claims file.
Schedule the Veteran for a VA
examination in order to ascertain the
existence and etiology of his claimed
residuals of head injury. The claims
file should be made available for
review, and the examination report
should reflect that such review
occurred. Upon a review of the
record and examination of the
Veteran, the examiner should prove an
opinion as to whether it is as least
as likely as not (a 50 percent
probability or greater) that the
Veteran currently has one or more
disabilities that are residuals of a
head injury sustained during military
service. If so, the examiner should
specify the disabilities.
A rationale for any opinion advanced
should be provided. The examiner
should also state what sources were
consulted in forming the opinion. If
examiner believes that she or he cannot
provide an opinion with resolving to
mere speculation, the examiner should
state such. However, rationale for
such an opinion must still be provided.
2. After completing the above action and
any other development as may be
indicated by any response received as a
consequence of the actions taken in the
preceding paragraphs, the Veteran's
service connection claim should be
readjudicated, to include all evidence
received since the October 2009
supplemental statement of the case. If
the claim remains denied, the Veteran
and his representative should be issued
another supplemental statement of the
case. An appropriate period of time
should be allowed for response.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).